We have seen a number of cases recently in Jersey and Guernsey where issues relating to covert recordings have arisen. Historically, employers have been reluctant to record disciplinary proceedings, and this does occasionally lead to employees taking matters into their own hands and making their own recordings, sometimes without the knowledge of all involved. This risk is aggravated where hearings are conducted remotely as employers cannot see what is happening off-screen.
In one recent matter that we acted in, the employee challenged the employer's notes of a grievance hearing and attempted to add to the notes. When the employer refused, the employee produced a covert recording to show that their additions were accurate and the employer's notes were clearly incorrect and unfavourable to the employee. This was potentially problematic for the employer, both in terms of their relationship and discussions with the employee but also in terms of undermining their credibility before a tribunal in any potential claim.
This led to a question over whether an employee can use a recording made in these circumstances. In this case, the answer was a clear yes.
The employee was recording the grievance hearing itself, and there can have been no expectation that the hearing was private or confidential so far as the employee was concerned. There was also no ulterior motive in making the recording or any sense that the employee had used the recording to try and force a favourable outcome or obtain favourable responses to questions. The employee here wanted an accurate record of the hearing. A tribunal will usually allow recordings made in these circumstances as the best evidence of what was said.
A tribunal is likely to take a different approach where employees try to use a covert recording of the deliberations or decision-making processes, where they would not usually be present. In those circumstances, there is an expectation that the deliberation process is private and as a result the employee cannot normally use any recordings of the private discussions. The main exception to this is where the recording shows that the decision itself was discriminatory, as the tribunals in Jersey and Guernsey rightly deprecate discrimination.
So what can employers do to protect themselves from the use of covert recordings? The first step is to set out expectations before a hearing takes place both in disciplinary and grievance procedures, and in any invitation letter, making it clear that a recording cannot be made and that if a recording is made this will be an act of misconduct and could of itself lead to disciplinary proceedings. Employers may also want to consider whether to list making a covert recording as a specific act of gross misconduct.
The warning will not automatically prevent the recording from being used in a tribunal hearing – as discussed above, a tribunal is likely to allow a recording of the hearing as the best evidence of what was said. However, if an employee is expressly told that they cannot record a hearing but still goes on to make one, they risk being subject to further disciplinary proceedings. This may act as a disincentive to the employee to record the hearing in the first place. It may also allow the employer to fairly dismiss the employee or to reduce the value of any damages.
If a covert recording is made of the decision-making process, or otherwise contains confidential information or business secrets, there are a number of other options depending on the nature of the discussions and what the proposed recording is going to be used for. The most common step is to seek an order for delivery up of confidential information.
Less commonly, employers can seek an interim injunction known as an “interim non-disclosure order,” which is what happened in the recent English case of Clearcourse Partnership v Jethwa  EWHC 1199 (QB), which involved a covert recording of confidential commercial discussions during the course of an acquisition. This was an unusual case, involving the sale of a business. Mr Jethwa inadvertently overheard and then went on to keep a record of the CCTV images of the other side's private discussions about their negotiation tactics, and their view of him and his future after the acquisition. He then threatened to share this on social media when the relationship broke down.
The claimant in that case brought a number of different claims and obtained an interim non-disclosure order to prevent the recording from being used or shared on social media.
The key claims that supported this injunction were:
- Breach of Confidence: the discussions were confidential, the individual was aware or ought to have been aware that they were confidential and there was the unauthorised use of or threat of use of this information.
- Misuse of private information: a conversation held behind closed doors gave rise to a reasonable expectation of privacy and there was no general interest in overriding this expectation when considering the rights of both parties.
- Data Protection: the recording contained personal data, which was retained without consent or a legitimate interest. The general CCTV warning was not sufficient here where the individual was retaining the recording.
Whilst Clearwater is an extreme case, it is a reminder for employers that they do have a number of options available to them to protect their confidential and private information. As well as an order requiring the delivery up of documents, employers can take steps to prevent their information from being used or shared more widely through an interim non-disclosure order.
Where an employer suspects that a covert recording has been made, they should take early steps to consider the legal risks and consider what steps they may want to take to preserve their confidential information and the misuse of it, and to what extent they can limit or restrict the use of that recording in any proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.